1980 PLP 698 (CLC)

Muhammad Ishaq v. Dr. A. R. Khan Law Notes 1971 Lah. 651 ; A. R. Khan v. Muhammad Ishaque 1972 S C M R 437 and Messrs Amir Din Allah Ditta v. Seth Adamji Abdullah 1969 S C M R 131 ref. Haji Pir Muhammad v. Haji Abdul Rashid 1968 S C M R 959 and Mst. Akhtar Sultana v. Dr. Abdul Rauf Nagi P L D 1978 Lab. 347 distinguished. Ch. Inayatullah Khan for Appellant. Sh. Hamid Mukhtar for Respondent. Date of hearing : 10th March, 1979. This second appeal by the owner-landlord under subsection (4) .of section 15 of the West Pakistan Urban Rent Restriction Ordinance VI of 1959 calls in question judgment of learned Appellate Authority (Additional District Judge, Sheikhupura) by means of which appeal by Muhammad Ashraf and Muhammad Akram tenants (respondents) against order of learned Rent Controller for their eviction from the shop in question was accepted, order of learned Controller was reversed and application of the appellant was dismissed.

2. The appellant had in his application before Rent Controller under section 13 of the Ordinance claimed eviction of the respondents from the shop in question on the ground that the respondents were in arrears of rent for the last 15 months, the appellant required the shop in good faith for the use and occupation of a son who was without job and, finally that the respondents had damaged the premises. The respondent 'contested the application and filed written controverting completely the allegations made in the application. The respondents contended that the shop was initially leased to them for monthly rent Rs. 50 which was subsequently raised to Rs. 70 per month. Default in payment of the rent for the period alleged in the application was not denied. The respondents maintained that the appellant had on 7-6-1973 taken a loan of Rs. 1,350 which the appellant needed for payment of dues of Auqaf Department outstanding against him. The appellant did not repay the amount. It was subsequently settled through intervention of certain persons having common relations with both sides that the amount will be adjusted towards future rent of the shop. The respondents also contended that the application was incompetent for mis -joinder of Muhammad Ashraf respondent (1), appellant was estopped by his conduct from initiating the proceedings and that the application was mala fide aimed at securing further enhancement in the rent. The parties were put to enquiry on several issues arising in the case. Both sides led evidence in support of their respective assertions. Evidence on the side of the appellant comprises statements of Muhammad Latif and Ghulam Nabi (A. Ws. 1/2) and the appellant himself. Mushtaq Ahmed and Mian Muhammad Anwar (R. Ws. 1/2) were adduced in rebuttal by the respondents of whore Muhammad Akram respondent (2) also entered the witness-box. Muhammad Latif and Ghulam Nabi (A. Ws. 1/2) said that the respondents had refused to pay arrears of rent due from them. The appellant had four sons and required the shop for his personal use. The appellant had in his statement affirmed the assertions which he had made in the application. Mushtaq Ahmed and Mian Muhammad Anwar witnesses of the respondents (R. Ws. 1/2) refuted the evidence on the side of the appellant that the respondents had refused to make payment of rent or that the appellant require the shop in good faith for use of a son. The witnesses said that the appellant had obtained from the respondents a sum of Rs. 1,350 by way of loan. Later, it was decided that the amount shall be adjusted towards future rent. The sons of the appellant were engaged in cultivation. 'The appellant did not require the shop bona fide for his personal use or for the use of his sons. Learned Rent Controller held that the version of tile respondents regarding advancement of loan to the appellant was a sheer concoction. In any case, the amount could not be adjusted towards future rent for the reason that Muhammad Akram respondent (2) had himself said in his statement that there was no agreement to the effect that the amount of loan shall be adjusted against future rent. Learned Rent Controller also held that admittedly the appellant did not own any other shop in the locality and there was sufficient evidence to prove his assertion that he required the shop in good faith. The issues of misjoinder and estoppel were also decided against the respondents, while the issue of damage was answered in their favour. In consequence of his findings on the issues of default and bona fide requirement of the shop by the appellant, learned Controller accepted the application and ordered eviction of the respondents directing them to hand over vacant possession of the shop within one month. As said above the order of learned Controller was set aside on appeal by learned Additional District Judge reversing the former's finding on both issues of default and bona fide requirement of the appellant with the result that the application of the appellant was dismissed. Learned Additional District Judge was of the view that the default in payment of rent by the respondents for a period of 15 months although proved by record could not be characterised as intentional or wilful. The appellant and his sons were cultivating land of Auqaf Department. Agriculture was the present avocation and exclusive source of income of the family as was evident from the fact that they had obtained land on lease from Auqaf Department. Muhammad. Akram respondent (2) had said in his statement that, initially, the rent of the shop was fixed at Rs. 50 per mensem which was subsequently enhanced to Rs. 70 per: mensem. The appellant had now demanded rent at the rate of Rs. 150 per mensemr These facts justified a conclusion that the landlord (appellant) was riot sincere in his demand of tenant's eviction on the ground of his requirement meaning thereby that the requirement was not bona fide.

3. Learned counsel for the respondents contended at the outset that findings on questions of default and bona fide requirement of the shop by the appellant for his personal use or for the use of a son were findings on a question of fact which could not be challenged in second appeal even though erroneous or grossly inexcusable. Considerations for hearing and disposal of further appeal under subsection (4) of section 15 of the Ordinance are the same as in second appeals under section 100, Civil Procedure Code. Court of first appeal alone is competent to entertain questions of soundness or otherwise of findings of fact recorded by trial Court. Second appeal is competent only on question of law or when there had been substantial error of procedure adopted in the enquiry which had produced a defective judgment on merits. The appeal should, therefore, be dismissed summarily. The proposition canvassed on the side of the respondents that decision on a question of fact cannot be displaced in second appeal even though High Court may on its own examination of case come to have a different opinion, is really beyond any controversy. But, the proposition is not altogether without exception and finding of fact is not sacrosanct in second appeal in every case. High Court will re-examine the case and interfere with decisions of Courts below on questions of fact if the findings are vitiated by misreading, misrepresentation of evidence or based on no evidence or base on controller 115,pothesis or were patently unjust. Circumstances of each case and the f treatment of evidence in the case which, however, does not include misappreciation of evidence, will determine if 'interference with the decision on a question of fact by the Courts below whether concurrent or at variance will be set aside in second appeal. I am tempted to cite here judgment of comparatively a distant past in the case of Bhanpura v. Diwan Chand (A I R 1940 Lah. 329) which applied appositely to the findings recorded by earned Additional District Judge. It vies held in that case that it is true that finding of fact arrived at by a lower Appellate Court is binding on the High Court, however, erroneous it might be. But this dictum pre-supposes that the finding is honest, that it has been arrived at on the facts of the case uninfluenced by any extraneous consideration, that it is the result of correct appreciation of the material on the record, and that it is based on evidence and not on surmises and conjectures. Any finding of fact which does not satisfy any of the requirements stated above will not be binding on the High Court. Every finding of fact is not sacrosanct and if findings of fact are arrived at on merely surmises and conjectures or on evidence that is inadmissible or otherwise legally insufficient, those findings can be disturbed. Reference be also made with advantage to the well-known judgment of Supreme Court in Madan Gopal and 4 others v. Alaram Bepari and 3 others (P L D 1969 .S C 61). It was held in that case that "if the finding of fact reached by the first appellate Court is at variance with that of the trial Court, former will ordinarily prevail, although it would not possess the same value or sanctity as a concurrent finding. Such a finding by the lower appellate Court will be immune from interference in second appeal only if it is found to be substantiated by evidence on record and is supported by logical reasoning duly taking note of the reasons adduced by the first Court which has been disfavoured in the contrary finding. The finding being at variance with that of the trial Judge., the two will naturally come in for comparison for their comparative merits in the light of the facts of the case and the reason on which two different findings have respectively proceeded. If the findings of the first appellate Court cannot be supported on the evidence on record or if it has failed to take into account a material piece of evidence or it does not reveal a logical basis for differing from. Finding of the trial Court or is otherwise to be arbitrary or capricious, it will have to be, rejected in second appeal.

4. Merits of finding of learned Additional District Judge on both issues of default and bona fide requirement of the shop by the appellant for his personal use do not detain us much longer. The evidence of Mushtaq Ahmed and Mian Muhammad Anwer that the appellant had obtained from the respondents a sum of Rs. 1,350 in the presence of these witnesses, and they both had also contributed towards payment of loan to the appellant merits rejection on the short ground that it was not suggested to the appellant that he had obtained loan in the presence of these witnesses. Similarly, the plea of the respondents that the appellant had demanded further increase in the rent should be rejected as afterthought as this plea was not raised in the written statement. Learned Additional District Judge had also found that the respondents had put forth a false plea of advancing a loan of Rs. 1,350 to the appellant as is evident from his observations in para. 10 of the judgment. Learned Additional District Judge had, said that "the tenants bad in fact tried to explain away the situation by putting forth yet a novel plea his plea was simply discarded by learned Controller on appraisal of evidence. It had to be. There was no document showing the advancement of debt . . . . . The fact that the tenant under somebody's advice put forth apparently false plea as to advancement of debt, its non-payment etc. does not n-lean that he was a liar through and through and that he had committed a `wilful default' . . . . . Technically, there may be a rent default but this rent default does not warrant the eviction of the tenant in the present circumstances as it vas not wilful or intentional default." The basis for this patently unjustified and illogical conclusion that the default was not wilful although it was sought to be met with a false plea under a supposed misdirected advice that the appellant had obtained a loan from the respondent, was that Ghulam Nabi a witness of the appellant had admitted that the respondents used to maximum periodical, payments. These mutually contradictory observations do not in the least justify the view that the default was not wilful. It was not the case of the respondents that the arrears had accumulated as the appellant had not turned up to receive the rent. The default had to be characterised as wilful as it was found that the tenants had put forth a false plea of payment of Rs. 1,350 to the appellant byway of loan. The fact that the appellant used to collect rent after several months did not avail of the respondents nor it erased falsity of the plea taken up by the respondents. Learned counsel for the respondents contended that order of ejectment should not be passed against the respondents even if they were held defaulters. Ejectment of a tenant on ground of default is discretionary with the Controller. Discretion must be exercised in favour of the tenants as the Ordinance was enacted for their protection against facile ejectments. I am afraid, this contention' cannot be evalued in favour of the respondents. A tenant guilty of raising false plea is not entitled to exercise of discretion in his favour which is exercised on equitable, and judicious considerations.

5. The view of learned Additional District Judge the issue of bona fide requirement was equally unjustified, arbitrary a d unjust as well. The appellant could not be forced that his sons should for their whole life continue cultivating land with him which lie had obtained on leas. It was also not realized that the appellant could not claim continuity of lease of land of Auqaf Department in his favour for ever. The desire of the appellant that one of his sons be installed into business obvious on considerations of exploring further avenues of income for the family should have been honoured as there was nothing for imputing bad faith to the appellant. Law did not concede power to learned Additional District fudge to decide about the expansion of avocation of the family of the appellant. Reference be made to the judgment in Muhammad Ishaq v. Dr. 'A. R. Khan (1) which applied to this case by analogy. In that case the land and applied before Rent Controller for orders of vacation of the shop at Murree. The application though contested by the tenant was accepted by learned Rent Controller, The latter's order was set aside in appeal by District judge with the view that the landlord owned several shops in Rawalpindi. He should have normally decided that his sons should start his business there and not at Murree which is only a seasonal shopping centre during summer months. This order was wt aside by the high court, in second appeal with the observation that the law does not give prove to the Court to decide that the landlord or his child should start his business in one shop or to a particular locality. This opinion amounted to taking responsibility for a personal decision which law leaves with the landlord to make. The judgment of High Court in second appeal was also attained by the Supreme Court (1) Law Notes 1971 Lah. 651 is 1972 S C o R 437 with the view that the finding recorded by the District Judge purely capricious and arbitrary based on conjectural hypothesis Single Judge in second appeal was wholly justified. Learned counsel for the respondents contended that the plea of the appellant for personal requirement of the shop should be rejected on the ground that he had not named the son whom he wanted to put into business and that the son was not examined in evidence. Reliance in this behalf was placed on the judgment of Supreme Court in Haji Pir Muhammad v. Haji Abdul Rashid (1968 S C M R 959) and Mst. Akhtar Sultaha v. Dr. Abdul Rauf Nagi (P L D 1978 Lah. 347). On facts the instant case is distinguishable from both. these judgments. In Pir Muhammad's case, an adverse presumption was drawn against the landlord for mission to examine his son in evidence for the reason that the relations in between the landlord and his son were not cordial and the son owned in his own right other suitable properties for carrying on business. He could not possibly have any need for the shop in dispute. It was thus held that in the an inference may well be drawn that the son was being witheld. In Axlaor Sulturur's CU,'( the son of the landlady (appellant) was employed as clerk to Municipality. It was held in the context of these circumstances that tile material placed on record is not enough to give a definite finding that the appellant requires the building in question in good faith for her sot use. In any cause that demand appear to be armature, If and when the son give at or is able to satisfy that be would give up the job or in any case he would be able (and otherwise he within his own right) to do the business when performing duties as a municipal employee it would be then possible for the appellant to seek eviction on this ground also. The assumption with regard to this ground being premature, finds support from the fact that even when the application for eviction was originally drafted this ground was not taken therein.

6. The matter should be looked from another angle also which had escaped the notice of learned Additions 1 District Judge. Statement of that appellant which as said above was not open to criticism or challenge of falsity or male fide was sufficient to prove the issue. The statement should have been considered and determined in the context of provisions contained in subsection (4) of section 13 of the Ordinance which proved a salutary safeguard in favour of the appellant. The said subsection provides that if the landlord who had obtained possession of the building on ground of personal use or for the use of his child does not himself or the child occupy it within one month of day of obtaining possession or has re-let within two months of the said date to any person other than the original tenant, the latter can restitution of possession. The effect of these provisions was also considered in the case of Muhammad Ishaq already cited above. It was held with reference to the judgment of Supreme Court in Messrs Amir Din Allah Ditra v. Serb Adamji Abdullah (1969 S C M R 131) that in the presence of the above provisions there was no possibility of a landlord acting in bad faith in bringing ejectment proceedings against his tenant on the ground of his personal requirement or that of his mate child. The Rent Controller or the appellate authority should, therefore, normally accept the requirement of the landlord when it is reasonably proved on record and there being, nothing to impute bad faith to him. The entire proceedings will be rendered valueless in cage of male fide intention of the appellant and the latter will have to surrender possession

7. In result I accept this appeal set aside the finding of learned Additional District Judge on both issues of default and bona fide requirement as arbitrary capricious and unjust and restore the order of learned Controller for ejectment are allowed one month fime to hand over vacant possession of the shop to the appellant. S.Q Appeal dismissed.